Citation Nr: 0111703
Decision Date: 04/23/01 Archive Date: 05/01/01
DOCKET NO. 00-13 332 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to accrued VA compensation benefits.
3. Entitlement to dependency and indemnity compensation
(DIC) under the provisions of 38 U.S.C. § 1318.
4. Entitlement of surviving spouse of veteran to nonservice-
connected death pension benefits.
ATTORNEY FOR THE BOARD
C. Kedem, Associate Counsel
INTRODUCTION
The veteran had recognized guerilla service from August 1944
to March 1945 and Regular Philippine Army service from
October 1945 to December 1945. This matter comes to the
Board of Veterans' Appeals (Board) from an August 1999 rating
decision by the Department of Veterans Affairs (VA) Manila
Regional Office (RO), which denied service connection for the
cause of the veteran's death, denied DIC benefits, denied
entitlement to accrued VA compensation benefits, and denied
entitlement to nonservice-connected death pension benefits.
FINDINGS OF FACT
1. The appellant did not initiate an appeal of the January
1967 decision denying entitlement to nonservice connected
death pension benefits and service connection for the cause
of the veteran's death.
2. The additional evidence received since the January 1967
denial (including a death certificate and verification of
hospitalization) is probative of the issue of entitlement to
service connection for the cause of the veteran's death and
is so significant that it must be considered in order to
decide fairly the merits of the claim.
3. The cause of the veteran's death was anemia.
4. The veteran had no service-connected diseases or
injuries.
5. The appellant did not file a claim for accrued VA
compensation benefits within one year of the veteran's death.
6. The veteran was not rated totally disabled at any time
prior to his death.
7. No additional evidence regarding the character of the
veteran's service, which would entitle the appellant to a
nonservice-connected death pension, has been received since
the January 1967 denial of such.
CONCLUSIONS OF LAW
1. The January 1967 decision is final. 38 U.S.C.A. § 7105
(West 1991); 38 C.F.R. §§ 20.302, 20.1103 (2000).
2. New and material evidence has been received to warrant
reopening of the claim of entitlement to service connection
for the cause of the veteran's death. 38 U.S.C.A. § 5108
(West 1991); Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, § 4, 114 Stat. 2096, 2098-99 (2000) (to be
codified as amended at 38 U.S.C. § 5107); 38 C.F.R. § 3.156
(2000).
3. A service-connected disability did not cause or
contribute substantially or materially to the cause of the
veteran's death. 38 U.S.C.A. § 1310 (West 1991); Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, § 4, 114
Stat. 2096, 2098-99 (2000) (to be codified as amended at
38 U.S.C. § 5107); 38 C.F.R. §§ 3.310, 3.312 (2000).
4. There is no legal entitlement to accrued VA compensation
benefits. 38 U.S.C.A. § 5121 (West 1991); 38 C.F.R. § 3.1000
(2000).
5. The criteria for an award of DIC benefits have not been
met. 38 U.S.C.A. § 1318 (West 1991); Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 4, 114 Stat.
2096, 2098-99 (2000) (to be codified as amended at 38 U.S.C.
§ 5107); 38 C.F.R. § 3.22 (2000).
7. No new and material evidence has been received to warrant
reopening of the claim of entitlement to nonservice-connected
death pension benefits. 38 U.S.C.A. § 5108 (West 1991);
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 4, 114 Stat. 2096, 2098-99 (2000) (to be codified as
amended at 38 U.S.C. § 5107); 38 C.F.R. § 3.156 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
The appellant is the veteran's surviving spouse.
The veteran had recognized guerrilla service from August 1944
to March 7, 1945 and Regular Philippine Army service from
October 1945 to December 1945.
The veteran died on February [redacted], 1966. The cause of death
was listed as anemia. Service records are silent with
respect to anemia.
In March 1966, the appellant submitted a receipt for burial
costs and a letter confirming payment for a coffin.
In January 1967, the appellant applied for educational
benefits for her eight minor children. By January 1967
decision, the RO determined that she had no right to
educational benefits, that she was not entitled to
compensation based on the cause of the veteran's death, and
that she was not entitled to nonservice-connected pension
benefits. Under the presumption of regularity, it is
presumed that she received notice of that decision absent
evidence to the contrary. See Mindenhall v. Brown, 7 Vet.
App. 271 (1994) (holding that there is a presumption of
regularity "in the administrative process in the absence of
evidence to the contrary.").
In the present case, the appellant does not allege, and the
Board does not find, evidence to the contrary. Thus, she is
presumed to have received notice of the January 1967
decision. She did not initiate an appeal within one year,
and that decision became final. 38 U.S.C.A. § 7105;
38 C.F.R. §§ 20.302, 20.1103.
In July 1999, the appellant submitted a "Certificate of
Treatment/Confinement" from the General Cailles Memorial
Hospital indicating that the veteran was "confined" there
from November 1965 to February 1966 for treatment of aplastic
anemia. According to the document, treatment records are no
longer available. That month, she also submitted the
veteran's death certificate listing the cause of death as
anemia.
By August 1999 rating decision, the RO denied service
connection for the cause of the veteran's death, entitlement
to DIC benefits, entitlement to accrued VA compensation
benefits, and entitlement to nonservice-connected death
pension benefits.
I. Preliminary Matter
The Board concludes that although this claim was decided by
the RO before enactment of the Veterans Claims Assistance Act
of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), a
remand to the RO for additional action is not warranted as VA
has already met its obligations to the appellant under that
statute. As set forth in more detail below, all relevant
facts have been adequately developed by the RO. Given the
facts of this case, there is no reasonable possibility that
any further assistance to the appellant would aid in
substantiating her claim. She was notified in decisions
dated in January 1967 and in August 1999 of the sort of
evidence necessary in order to obtain VA benefits. She was
reminded of the same by SOCs. In view of the foregoing, the
Board finds that VA has fully satisfied its duty to the
appellant under the VCAA. As the RO fulfilled the duty to
assist, and because the change in law has no material effect
on adjudication of her claim, the Board finds that it can
consider the merits of this appeal without prejudice to her.
Bernard v Brown, 4 Vet. App. 384 (1993)
II. Entitlement to Service Connection for the Cause of the
Veteran's Death
Law and Regulations
Service Connection
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted in the
line of duty or for aggravation of a pre-existing injury or
disease in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West
1991); 38 C.F.R. §§ 3.303, 3.306 (2000).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
In addition, service connection may be granted for disability
which is proximately due to or the result of a service-
connected disease or injury. 38 C.F.R. § 3.310(a) (2000).
Moreover, where a service-connected disability causes an
increase in, but is not the proximate cause of, a nonservice-
connected disability, the veteran is entitled to service
connection for that incremental increase in severity
attributable to the service-connected disability. Allen v.
Brown, 7 Vet. App. 439, 448 (1995).
In the case of any veteran who has engaged in combat with the
enemy in active service during a period of war, satisfactory
lay or other evidence that an injury or disease was incurred
or aggravated in combat will be accepted as sufficient proof
of service connection if the evidence is consistent with the
circumstances, conditions, or hardships of such service, even
though there is no official record of such incurrence or
aggravation. Every reasonable doubt shall be resolved in
favor of the veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R.
§ 3.304(d).
To establish service connection for the cause of the
veteran's death, the evidence must show that a disability
incurred in or aggravated by service either caused or
contributed substantially or materially to cause death. 38
U.S.C.A. § 1310; 38 C.F.R. § 3.312. For a service-connected
disability to be the cause of death, it must singly, or with
some other condition, be the immediate or underlying cause,
or be etiologically related. For a service-connected
disability to constitute a contributory cause, it is not
sufficient to show that it casually shared in producing
death, but rather it must be shown that there was a causal
connection. Id.
New and Material Evidence
As set forth above, the appellant's claim of entitlement to
service connection for the cause of the veteran's death was
denied in a final January 1967 decision. Despite the
finality of a prior adverse decision, a claim will be
reopened and the former disposition reviewed if new and
material evidence is presented or secured with respect to a
claim that has been disallowed. 38 U.S.C.A. § 5108; 38
C.F.R. § 3.156.
Under applicable regulation, "new and material evidence" is
defined as evidence not previously submitted to agency
decision makers which bears directly and substantially upon
the specific matter under consideration, which is neither
cumulative or redundant, and which by itself or in
conjunction with evidence previously assembled is so
significant that must be considered in order to fairly decide
the merits of the claim. 38 C.F.R. § 3.156; see also Hodge v.
West, 155 F.3d 1356 (Fed. Cir. 1998).
The Federal Circuit has noted that not every piece of new
evidence is "material," but that some new evidence may well
contribute to a more complete picture of the circumstances
surrounding the origin of a veteran's injury or disability,
even where it will not eventually alter a rating decision.
Hodge, 155 F.3d at 1363.
In determining whether evidence is new and material, the
credibility of the evidence is generally presumed. Justus v.
Principi, 3 Vet. App. 510, 512-513 (1992). However, this
presumption of credibility is not unlimited. The Court has
subsequently held that the Justus credibility rule is not
"boundless or blind;" if the newly submitted evidence is
"inherently false or untrue," the Justus credibility rule
does not apply. See Duran v. Brown, 7 Vet. App. 216, 220
(1994). In Kutscherousky v. West, 12 Vet. App. 369 (1999),
the Court held that the holding in Justus was not altered by
the Federal Circuit decision in Hodge.
In its present adjudication, the RO decided the claim on the
merits and failed to apply the new and material evidence
standard. However, "a previously decided claim may not be
reopened in the absence of new and material evidence."
Barnett v. Brown, 8 Vet. App. 1, 4 (1995) (citing 38 U.S.C.
§§ 5108, 7104(b)). Further, regardless of the RO's actions,
the Board is legally bound to decide the threshold issue of
whether the evidence is new and material before addressing
the merits of the claim. Id.
With these considerations, the Board must review all of the
evidence which has been submitted by the appellant or
otherwise associated with the claims file since the last
final decision in January 1967.
This additional evidence consists of (1) a copy of the death
certificate listing the cause of death and (2) a confirmation
of hospitalization. After careful consideration of this
evidence, the Board finds that it is new and material, and
sufficient to reopen the claim for service connection for the
cause of the veteran's death.
Analysis
As stated above, the veteran died of anemia. Service records
make no mention of anemia, and the only indication of post-
service treatment is the confirmation of his 1966
hospitalization for aplastic anemia. The confirmation of his
hospitalization reflects that clinical records were
"disposed." Thus, service connection for the cause of the
veteran's death must be denied, as there is no way to link
his anemia to service. See 38 C.F.R. §§ 3.303, 3.306, 3.312.
Under VCAA, the Secretary is not required to provide
assistance to the claimant if no reasonable possibility
exists that such assistance would aid in substantiating the
claim. Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be
codified as amended at 38 U.S.C. § 5103A(a)(2)). In the
instant case, VA assistance would not help the appellant to
substantiate her claim. Service records provide no pertinent
information, and hospitalization records from the 1960's have
been destroyed. Thus, as stated above, there is no way to
link the veteran's cause of death to service, and there is no
reasonable possibility that any VA assistance in this matter
would benefit the appellant.
III. Entitlement to Accrued VA Compensation Benefits
Law and Regulations
The law and regulations governing claims for accrued benefits
state that, upon the death of a veteran, his lawful surviving
spouse may be paid periodic monetary benefits to which he was
entitled at the time of his death, and which were due and
unpaid for a period not to exceed two years, based on
existing rating decisions or other evidence that was on file
when he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000; see
also Jones v. Brown, 8 Vet. App. 558, 560 (1996).
Application for accrued benefits must be filed within one
year after the date of death; a claim for death pension,
compensation, or dependency and indemnity compensation is
deemed to include claim for accrued benefits. 38 C.F.R. §
3.1000(c).
Analysis
The veteran died on February [redacted], 1966. The appellant, his
surviving spouse, did not file her claim for accrued VA
compensation benefits until January 1999, more that three
decades after the veteran's death. Thus, she is not entitled
to accrued benefits pursuant to section 5121.
The Board recognizes that the RO did not address this matter
in its December 1999 and July 2000 statements of the case.
However, the appellant is not prejudiced by such oversight.
See Bernard v. Brown, 4 Vet. App. 384 (1993). All relevant
law and regulations were discussed in the August 1999 rating
decision. Id.
IV. Entitlement to DIC Benefits Under 38 U.S.C. § 1318
Law and Regulations
A VA claimant may receive section 1318 DIC benefits in the
same manner as if the death were service-connected, if not
based on misconduct, under any one of the three following
theories: 1) If the veteran was in actual receipt of
compensation at a total disability rating for 10 consecutive
years preceding death; 2) if the veteran would have been
entitled to receive such compensation but for clear and
unmistakable error (CUE) in previous final RO decisions and
certain previous final Board decisions; or 3) if, on
consideration of the evidence in the veteran's claims file or
VA custody prior to the veteran's death and the law then or
subsequently made retroactively applicable, the veteran
hypothetically would have been entitled to receive a total
disability rating for a period or periods of time, when added
to any period during which the veteran actually held such a
rating, that would provide such a rating for at least the 10
years immediately preceding the veteran's death. 38 U.S.C.A.
§ 1318 (West 1991); 38 C.F.R. § 3.22 (2000); see also Cole v.
West, 13 Vet. App. 268 (1999); Marso v. West, 13 Vet.
App. 260 (1999); Wingo v. West, 11 Vet. App. 307 (1998)
Consideration of CUE requires that the appellant first
specifically raise the issue. See Ruiz v. Gober, 10 Vet.
App. 352, 357 (1997). The Court emphasized this point again
in Cole, supra.
Also, with respect to hypothetical entitlement to DIC
benefits, the Court held that a claimant must set forth how,
based on evidence in the claims file or under the VA's
control at the time of the veteran's death and law then
applicable, the veteran would have been entitled to a total
disability rating for the 10 years immediately preceding his
death. See Cole, supra.
Analysis
In the present case, there was no period during which the
veteran was rated as totally disabled. Thus, the appellant
is not entitled to DIC benefits under section 1318.
Even under the Court's "hypothetically entitled to receive"
theory, entitlement to DIC benefits under section 1318 would
not be warranted as there is absolutely no evidence of record
to show that, even had the veteran brought a claim more than
10 years prior to his death, he would have been entitled to
receive a total disability rating for the 10 years
immediately preceding his death, thus entitling his survivor
to DIC benefits under section 1318. Furthermore, the
appellant has submitted no argument to this effect. See
Cole, supra (holding that, as to a section 1318
"hypothetically entitled to receive" theory, a claimant
must set forth how, based on the evidence in the veteran's
claims file, or under VA's control, at the time of the
veteran's death and the law then applicable, the veteran
would have been entitled to a total disability rating for the
10 years immediately preceding his death); see also Marso,
supra. Similarly, the appellant has not raised any argument
based on CUE. As such, the Board need not address that
matter. Ruiz, supra; Cole, supra.
Based on the foregoing, the Board finds no entitlement to DIC
benefits under 38 U.S.C. § 1318.
V. Entitlement to Nonservice-Connected Death Pension Benefits
Law and Regulations
Philippine Service
The veteran, a resident of the Philippines, had recognized
guerrilla service from August 1944 to March 1945 and service
with the Regular Philippine Army from October 1945 to
December 1945. National Personnel Records Center (NPRC)
records verify his service, as above; he had no additional
service after December 20, 1945, and he died in February
1966. His surviving spouse seeks VA nonservice-connected
death pension benefits.
The pertinent law and regulations authorize the payment of
death pension benefits to the surviving spouse of a veteran
of a period of war who met the requisite service
requirements. 38 U.S.C.A. § 1541 (West 1991). Those
requirements mandate active military, naval or air service
for 90 days or more during a period of war. 38 U.S.C.A.
§ 1521(j) (West 1991).
The term "veteran" means a person who served in the active
military, naval or air service and who was discharged or
released under conditions other than dishonorable.
38 U.S.C.A. § 101(2) (West 1991); 38 C.F.R. § 3.1(d) (2000).
Service before July 1, 1946, in the organized military forces
of the Government of the Commonwealth of the Philippines,
while such forces were in the service of the Armed Forces of
the United States pursuant to the military order of the
President dated July 26, 1941, including among such military
forces organized guerrilla forces under commanders appointed,
designated, or subsequently recognized by the Commander in
Chief, Southwest Pacific Area, or other competent authority
in the Army of the United States, shall not be deemed to have
been active military, naval, or air service for the purposes
of any law of the United States conferring rights,
privileges, or benefits upon any person by reason of the
service of such person or the service of any other person in
the Armed Forces, except for certain specified benefits which
do not include nonservice-connected death pension benefits
pursuant to Title 38, Chapter 15 of the U.S. Code. 38
U.S.C.A. § 107(a); 38 C.F.R. § 3.8.
VA is prohibited from finding, on any basis other than a
service department document, which VA believes to be
authentic and accurate, or service department verification,
that a particular individual served in the U.S. Armed Forces.
Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In addition,
service department findings are binding on the VA for
purposes of establishing service in the U.S. Armed Forces.
Id.; see also Dacoron v. Brown, 4 Vet. App. 115, 120 (1993).
New and Material Evidence
As set forth above, the appellant's claim of entitlement to a
nonservice-connected pension was previously denied in a final
January 1967 decision. Despite the finality of a prior
adverse decision, a claim will be reopened and the former
disposition reviewed if new and material evidence is
presented or secured with respect to a claim that has been
disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.
Under applicable regulation, "new and material evidence" is
defined as evidence not previously submitted to agency
decision makers which bears directly and substantially upon
the specific matter under consideration, which is neither
cumulative or redundant, and which by itself or in
conjunction with evidence previously assembled is so
significant that must be considered in order to fairly decide
the merits of the claim. 38 C.F.R. § 3.156; see also Hodge v.
West, 155 F.3d 1356 (Fed. Cir. 1998).
The Federal Circuit has noted that not every piece of new
evidence is "material," but that some new evidence may well
contribute to a more complete picture of the circumstances
surrounding the origin of a veteran's injury or disability,
even where it will not eventually alter a rating decision.
Hodge, 155 F.3d at 1363.
In determining whether evidence is new and material, the
credibility of the evidence is generally presumed. Justus v.
Principi, 3 Vet. App. 510, 512-513 (1992). However, this
presumption of credibility is not unlimited. The Court has
subsequently held that the Justus credibility rule is not
"boundless or blind;" if the newly submitted evidence is
"inherently false or untrue," the Justus credibility rule
does not apply. See Duran v. Brown, 7 Vet. App. 216, 220
(1994). In Kutscherousky v. West, 12 Vet. App. 369 (1999),
the Court held that the holding in Justus was not altered by
the Federal Circuit decision in Hodge.
In its present adjudication, the RO decided the claim on the
merits and failed to apply the new and material evidence
standard. However, "a previously decided claim may not be
reopened in the absence of new and material evidence."
Barnett v. Brown, 8 Vet. App. 1, 4 (1995) (citing 38 U.S.C.
§§ 5108, 7104(b)). Further, regardless of the RO's actions,
the Board is legally bound to decide the threshold issue of
whether the evidence is new and material before addressing
the merits of the claim. Id.
With these considerations, the Board must review all of the
evidence, which has been submitted by the veteran or
otherwise associated with the claims file since the last
final decision in January 1967.
Analysis
Pursuant to the foregoing, the appellant would have to submit
new and material evidence regarding the nature of the
veteran's service in order to reopen her claim of entitlement
to a nonservice-connected death pension.
The appellant submitted no additional evidence regarding the
character of the veteran's service. Thus, the Board need not
determine the issues of "newness" and "materiality," and
the claim will not be reopened. See 38 C.F.R. § 3.156,
Hodge, supra. Furthermore, the final January 1967 decision
in this matter remains final. 38 C.F.R. §§ 20.302, 20.1100.
ORDER
The claim of service connection for the cause of the
veteran's death is denied.
The claim of entitlement to accrued VA compensation benefits
is denied.
The claim of entitlement to 38 U.S.C. § 1318 DIC benefits is
denied.
No new and material evidence having been submitted, the
appellant's claim for VA nonservice-connected death pension
benefits is denied.
S. F. Sylvester
Acting Member, Board of Veterans' Appeals